Don't take Modesto voting case, justices told

It's too early for the U.S. Supreme Court to intervene in a Modesto voting rights lawsuit, attorneys for three Latino residents who are suing the city for election reforms argue in a brief to the court.

Robert Rubin, a San Francisco civil rights attorney leading the case, contends that the Supreme Court should reject Modesto's July appeal to strike the lawsuit because:

A pending measure on the November ballot could change the way Modestans elect their City Council members, which would make the lawsuit unnecessary.

The city's push to overturn the California Voting Rights Act, a 2002 law at the center of the lawsuit, is misguided because the law does not discriminate against different races.

"The city should be focused on the efforts to reform what all seem to concede is an unfair election system rather than spending public monies on futile litigation," Rubin said.

Modestans choose City Council members through at-large elections, which allow all residents to vote for representatives in all six council "chairs."

Rubin and his clients want the city to adopt district elections, which require candidates to live in specific neighborhoods.

They argue that district elections would break down some of the barriers that make it difficult for minority candidates to win council races, such as the cost of a citywide campaign.

Modesto voters in November will see an advisory measure that will ask them whether they'd like the city to adopt district elections.

A second advisory measure on the same ballot will ask them which of two methods of conducting district elections they prefer -- a pure system that would divide the city into six districts, or a mixed system that would split the city into six districts and add two at-large council seats. The mayoral seat would remain a citywide race.

The results of those votes are expected to shape a binding measure in February that would implement whichever method gains the most support.

Rubin filed a lawsuit against the city in June 2004 under the California Voting Rights Act, which allows minorities to sue for election reforms if they can demonstrate that racially polarized voting in at-large elections dilutes their power at the polls.

Modesto fought the lawsuit, known as Sanchez vs. Modesto, by arguing that the state voting law is unconstitutional because it "invalidates at-large election systems solely on the basis of racially polarized voting."

Stanislaus County Superior Court Judge Roger Beauchesne sided with the city in 2005, but California's 5th District Court of Appeal in Fresno upheld the law and overturned Beauchesne's ruling in December. The state Supreme Court in March upheld the law by declining to hear the city's appeal.

Modesto in July submitted a petition to the U.S. Supreme Court to hear the case and overturn the state voting law.

John McDermott, a Los Angeles attorney representing the city, likened Rubin's case to arguments for racial protections that justices rejected in June when they struck down school busing programs in Kentucky and Washington state.

But in a petition filed Sept. 11, Rubin countered that the California Voting Rights Act was a clear-cut, anti-discriminatory measure the Legislature adopted to protect minorities. He repeated the Fresno court's contention that the act does not discriminate against any race because it allows anyone to sue for district elections, including whites.

"There is no reason for this court to interrupt California's regulation of its local election based upon some unfounded fear that a constitutional violation will result," Rubin wrote. "If such issues arise, they may be addressed in due course."

Rubin's argument first appeared on Ballot Access News, one of three election law blogs that are following the case.

Several election law experts have told The Bee the city has a good chance of getting its arguments before the court, which receives petitions for thousands of cases a year.

Modesto could hear by next month whether the court will take the case.

To comment, click on the link with this story at www.modbee.com. Bee staff writer Adam Ashton can be reached at aashton@modbee.com or 578-2366.

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